This has been an extraordinary week for British resident, torture victim and Guantánamo prisoner Binyam Mohamed. Last Thursday, his lawyers’ ten-month campaign to secure the disclosure of documents in the possession of the British government, which apparently confirm details of his “extraordinary rendition” and torture, sparked a crisis when the High Court judges in his case, Lord Justice Thomas and Mr. Justice Lloyd Jones, bowed to pressure from the foreign secretary, David Miliband, not to make public a summary of the evidence because the US government had threatened to re-evaluate its intelligence sharing relationship with the UK, which “could inflict on the citizens of the United Kingdom a very considerable increase in the dangers they face at a time when a serious terrorist threat still pertains.”

This was in spite of the fact that, since last August, the judges have made it clear that they believe that a summary of what happened to Binyam should be made available in the interests of “open justice, the rule of law and democratic accountability,” and also because “The suppression of reports of wrongdoing by officials (in circumstances which cannot in any way affect national security) would be inimical to the rule of law and the proper functioning of a democracy.”

Hiding torture in the UK

In response to the judges’ capitulation, the media seized on a particular passage in the judgment -- which stated that one of the main reasons that the judges had made their decision was because they had “been informed by counsel for the Foreign Secretary that the position had not changed” with the inauguration of Barack Obama -- to confront the foreign secretary about the nature of these threats. On Channel 4 News, David Miliband played down the talk of a “threat” -- even though the judges had mentioned it no less than eight times in their judgment -- and explained,

What there is is a simple fact, which is that intelligence cooperation depends on confidentiality. We share our secrets with other countries, and they share their secrets with us, and the founding principle, for us and for them, is that we can trust the confidentiality of that relationship. In this case, the United States made clear, in documents that have been published, that there would inevitably be lasting harm if that fundamental principle was breached.

This was undoubtedly true -- although it also conveniently allowed the British government to avoid having to deal with the revelation, in public, of its own agents’ complicity in war crimes -- but Miliband then appeared to back up his counsel’s claim that the situation had not changed with the arrival of a new administration in the White House. After Jon Snow asked him, “Have you checked that this threat -- and it is a threat, because the judges call it a threat -- still stands under the Obama administration?” Miliband responded by stating, “There’s no evidence that it doesn’t stand.”

This was in marked contrast to a statement earlier that day by a spokesman for Prime Minister Gordon Brown, who maintained, as the Daily Mail described it, that Downing Street “was unaware of any threat from the Obama administration to withdraw intelligence sharing.” The spokesman stated, explicitly “We have not engaged with the new administration on the detail of this case.”

On Thursday, in a response to the furore in the House of Commons, David Miliband dropped his carefully worded response to Jon Snow’s question about the Obama administration, and contented himself with repeating the mantra about the “fundamental principle” of confidentiality between governments regarding the disclosure of intelligence information. However, the gulf between what the judges had been led to believe, and the statement from the Prime Minister’s spokesman, prompted Binyam’s solicitors, at Leigh Day & Co., to prepare a new submission (PDF), asking the High Court to reconsider its judgment.

Binyam’s lawyers request the High Court to reconsider its judgment

The submission included a witness statement from the journalist David Rose, who reported that, in addition to the comments made on behalf of the Prime Minister, a spokesman for the Foreign and Commonwealth Office had stated on February 4, “We haven't made any representations to the court regarding the new administration's approach to this case. We have not approached the new administration about these paragraphs. We haven't made any representations about their attitude and we haven't been asked by the court to do so, despite the new executive orders and the attitude that may now prevail in Washington.”

The demands made in the submission were stark. In light of the fact that “No threat was made by the US Government,” and “No approach had been made by the UK Government to the new US administration of President Obama, and no representations had been made to the Court about the attitude of the new administration,” Dinah Rose QC and Ben Jaffey declared that “these statements call seriously into question the accuracy and completeness of the evidence and submissions given by the Defendant [David Miliband] on which the Court relied in reaching its judgment,” and asked the Court “to reopen its judgment in this matter, and to order the Defendant to swear evidence setting out the complete and accurate factual position as to the making of a threat; and the maintenance of any threat by the Obama administration.”

Hiding torture in the US: Obama’s first great failure

Just five days after David Miliband’s successful intervention to prevent the disclosure of evidence of Binyam’s rendition and torture in the UK, the American Civil Liberties Union (ACLU), following up on a case it had first pursued in May 2007 (PDF), which was dismissed in February 2008, embarked on its first test of President Obama’s commitment to addressing the crimes of the Bush administration in a Ninth Circuit appeals court in San Francisco.

The case, which involves Jeppesen Holdings Inc., a Boeing subsidiary responsible for managing the Bush administration’s “extraordinary rendition” program (“The CIA’s Travel Agent,” as Jane Mayer described them in 2006), centered on five well known cases of rendition of torture. In addition to Binyam, who was seized in Pakistan in April 2002, and was then rendered by the CIA to Morocco for 18 months of torture, followed by another five months of torture in the CIA’s “Dark Prison” near Kabul, the ACLU’s suit was also filed on behalf of Ahmed Agiza, Abou Elkassim Britel, Mohamed Farag Ahmad Bashmilah and Bisher al-Rawi, whose stories, in brief, are as follows:

Ahmed Agiza, an Egyptian national, was an asylum seeker in Sweden. In December 2001, with the cooperation of the Swedish authorities, he was seized by the CIA and rendered to Egypt, where, after being tortured, he was subjected to a show trial and given a 25-year sentence (which was reduced to 15 years on appeal).

Abou Elkassim Britel, an Italian citizen, was seized in Lahore in 2002 and rendered by the CIA to Morocco, where he was tortured. Released without charge in February 2003, he was seized by the Moroccan authorities in May 2003, as he attempted to fly back to Italy, and was subjected to a show trial and given a 15-year sentence (which was reduced to nine years on appeal).

Mohamed Farag Ahmad Bashmilah, a Yemeni citizen, was seized by Jordanian intelligence agents in October 2003 and tortured for five days. He was then rendered to the US prison at Bagram airbase in Afghanistan, where he was tortured for six months, and was then moved to a secret black site run by the CIA, where his torture continued. In May 2005, he was secretly flown to Yemen, where he was imprisoned until he was finally released without charge in March 2006.

Bisher al-Rawi, a British resident, was kidnapped in the Gambia in November 2002, and rendered by the CIA to Afghanistan, where he was tortured for two months in two secret prisons. He was flown to Guantanamo in February 2003, and was released in March 2007.

Although there were high hopes that the Obama administration would take this opportunity to move beyond its commitment to outlaw torture, “extraordinary rendition” and the use of secret prisons -- as laid out in a series of executive orders issued on Obama’s second day in office -- and would start to pursue those responsible for those crimes, what happened instead, as the New York Times described it, was that “a lawyer for the Obama administration seemed to surprise a panel of federal appeals judges” by “pressing ahead with an argument for preserving state secrets originally developed by the Bush administration.”

As the Times explained, Judge Mary M. Schroeder, a Carter appointee, “coyly referring to the recent election,” asked the lawyer, Douglas N. Letter, “Is there anything material that has happened” that might have caused the Justice Department to shift its views? “No, your honor,” came the reply. Judge Schroeder tried again. “The change in administration has no bearing?” she asked. Once again, Letter replied, “No, Your Honor,” and added that his position on the case had been “thoroughly vetted with the appropriate officials within the new administration.” “[T]hese,” he declared emphatically, “are the authorized positions.”

The position taken by Justice Department was, in theory at least, in direct contrast to the position taken by the new Attorney General, Eric Holder, both at his confirmation hearing and in a statement that he made the day before the case, when he pledged to review all assertions of the state secrets privilege that had been exercised by the Bush administration. As the Washington Post described it, Matt Miller, a spokesman for the Justice Department, “declined to discuss the ACLU's suit in San Francisco, citing ongoing litigation,” but insisted that the Department was still committed to a review of the Bush administration’s use, or misuse of the state secrets privilege.

“The attorney general has directed that senior Justice Department officials review all assertions of state secret privilege to ensure that it is being invoked only in legally appropriate situations,” Miller explained, adding, “It is vital that we protect information that if released could jeopardize national security, but the department will ensure the privilege is not invoked to hide from the American people information about their government's actions that they have a right to know.”

This was, however unintentionally, a rather provocative statement, as there are many people, in the United States and beyond, who believe that information about the Bush administration’s global policy of kidnapping, rendition and torture is exactly the sort of topic about which “they have a right to know,” and Anthony D. Romero, the executive director of the ACLU, responded angrily to the Justice Department’s stance. “This is not change,” he stated, throwing President Obama’s campaign pledge back at him. “This is definitely more of the same. Candidate Obama ran on a platform that would reform the abuse of state secrets, but President Obama’s Justice Department has disappointingly reneged on that important civil liberties issue. If this is a harbinger of things to come, it will be a long and arduous road to give us back an America we can be proud of again.”

However, bitter though the truth may be, when it came down to it President Obama and his team must, I think, have been literally besieged by supplicants -- from the CIA, from Boeing, from Jeppesen, and from countless other government departments and contractors involved in “extraordinary rendition” and torture in the last seven years -- urging them not to open up the floodgates to what David Miliband has been striving, on a smaller scale, to prevent in the UK: prosecution for complicity in war crimes.

Quite where this leaves the struggle for the disclosure of evidence relating to “extraordinary rendition” and torture is unclear, although from my point of view, the most appropriate course of action would be for those directly responsible for implementing America’s “War on Terror” policies -- a list that includes George W. Bush, Dick Cheney, Donald Rumsfeld, David Addington, John Yoo, Alberto Gonzales, and William J. Haynes II, to name but a few -- to be pursued for the prosecutions that President Obama is obliged to follow up on, after the admission in February 2008 by Gen. Michael Hayden, the director of the CIA, that waterboarding -- a form of torture -- was used on a number of “high-value detainees,” and last month’s confession by Susan Crawford, the Convening Authority of the Military Commission trial system at Guantánamo, that she had dropped the charges against Mohammed al-Qahtani, the alleged 20th hijacker for the 9/11 attacks, because“His treatment met the legal definition of torture.”

The US and the UK come up with a logical, but quietly desperate compromise

In the meantime, both the US and UK governments appear to have come up with a way of removing the fear of the disclosure of evidence of “extraordinary rendition” and torture in Binyam Mohamed’s case by arranging -- as has been suggested since the end of last year -- that he will be returned in the near future to Britain, where, without wishing to be at all cynical, his precarious status will ensure that he breathes a word to nobody about his experiences until the British government renews his residency at some unspecified point in the future.

The last straw for David Miliband may well have been the arrival in the UK of Lt. Col. Yvonne Bradley, Binyam’s military defense attorney for his proposed trial by Military Commission (which was dropped last October and has not, unsurprisingly, been reinstated), who flew in at the weekend in an attempt to ramp up the pressure on both governments, bearing bleak news about how Binyam is “close to death” after two months on a hunger strike, wooing the media with her ability to present the issues with an understated directness, and -- no doubt to the government’s dismay -- hooking up with the Tory MP David Davis, who leapt on the US “threat” last week, for a press conference on Wednesday morning. Soon after, Lt. Col. Bradley met with David Miliband, who explained in a subsequent statement,

I met Binyam Mohamed's US military defence counsel Lt Col Yvonne Bradley today. I wanted to hear her views personally, particularly following her recent visit to Guantánamo. We have long been concerned by reports of Mr. Mohamed's medical condition, and her account underlined those concerns.

As I made clear in parliament last week we are working as fast and hard as we can to secure Mr. Mohamed's release from Guantánamo and return to the UK. We want him to be released as soon as possible. FCO officials and the embassy in Washington have held further talks at senior level in recent days with the US administration.

Miliband then indicated that Binyam’s release was dependent not on the collapse of the charges against him -- even though the “dirty bomb” plot allegations were dropped by the Justice Department last October, when the judge in his habeas corpus review ordered the government to provide evidence of the plot -- but was, instead, dependent on the outcome of the review of the cases against the remaining 242 prisoners that President Obama had instigated in his executive orders on his second day in office. This was a twist that, sadly, seemed designed to allow both Obama and David Miliband to distance themselves once more from the troublesome truth about the case against Binyam. As the foreign secretary explained:

President Obama's executive orders of 22 January established a review of the cases of all those detained at Guantánamo. Following our representations, the US administration have now agreed that Mr. Mohamed's case should be treated as a priority in this process. We continue to work with the US to achieve a swift resolution.

He also explained, in another passage that appeared to have been carefully scripted on both sides of the Atlantic, that British officials would soon be visiting Binyam to prepare for his return to the UK, if Obama’s expedited review of his case -- which is surely a foregone conclusion if the lid is to be held firmly shut on the details of his torture -- approves his release:

The US administration yesterday also agreed that Foreign Office officials should visit Mr. Mohamed as soon as possible. The visit will help us make preparations for his return, should the review confirm a decision to release him. The team will include a Metropolitan police service doctor, who would take part in any return, so that he may assess Mr. Mohamed's condition himself and report back.

This has not, in truth, been a good week for justice, but it may just have been a life-saver for Binyam Mohamed.